Last Updated on July 31, 2023 by Benson Varghese
What is paternity?
Paternity is more than just the idea of being a dad, it is a legal status that creates specific rights, as well as obligations. Basically, it is the legal identification of a child’s father.
Why is it important to establish paternity in Texas?
By establishing paternity in Texas, the father ensures his child is eligible for child support and other benefits, including insurance, inheritance, and veteran-survivor benefits.
It may come as a surprise, but a child born to unwed parents does not have a legal father under Texas law. Similarly, having your name on the birth certificate is not enough the make a person the legal father.
If the father and mother separate, legal paternity establishes parental rights for the father. It enables a father to access a child’s school and medical records, ask a court for custody, and potentially be granted child support.
Before a mother can get a court to order child support, paternity must be established. Plus, by establishing paternity in Texas, a child becomes eligible for the father’s benefits, such as medical and social security benefits.
The Importance of Establishing Paternity for the Child and the Father
Establishing paternity is important for several reasons. For the child, it can provide a sense of identity and help to establish a relationship with the biological father. It can also provide the child with access to financial and medical support from the father, as well as access to family medical history and other important information.
For the father, establishing paternity can give him legal rights and responsibilities, such as the right to visit the child and the responsibility to provide financial and medical support. It can also give the father the right to make important decisions about the child’s upbringing and future, such as decisions about education and health care.
Who can bring a paternity action to establish paternity?
In Texas, paternity actions can be brought by the child’s mother, a man claiming to be the father of the child, a government agency, or the child (including a child’s legal representative).
Common Issues and Challenges in Paternity Cases
Despite the importance of establishing paternity, there are several common issues and challenges that can arise in paternity cases. One common issue is a lack of cooperation from the alleged father. In some cases, the man may deny that he is the father or refuse to participate in DNA testing.
Another issue is the issue of mistaken paternity. This occurs when a man is incorrectly named as the father of a child and is later determined not to be the biological father. This can lead to complex legal and emotional issues for both the man and the child.
Finally, there may be issues related to child support and custody. In some cases, the father may contest a child support order, arguing that he is not the biological father of the child. Similarly, the father may contest a custody order, arguing that he has a right to custody or visitation based on his biological relationship to the child.
Are there different legal types of paternity?
There are several different legal definitions of “father.”
An acknowledged father is one that has an Acknowledgement of Paternity (AOP) filed with the Vital Statistics Unit, giving him the rights and obligations of a parent.
An adjudicated father is one established by a court.
An alleged father is one that claims he is the father of a child. This type of father has no legal rights and must establish paternity to have any legal claim to the child.
A biological father is one who is related to the child by blood. A biological father who is unmarried to the mother of the child when the child is born must establish paternity to have legal rights.
A legal father is one that has already established paternity.
A presumed father is one who has the legal right because he was either married to the mother when the child was born, was married to the mother within 300 days before the child’s birth, or continuously lived with the child for the first two years of the child’s life and claims the child as his own to others.
How does a person establish paternity in Texas?
There are several ways of establishing paternity in Texas.
Acknowledgment of Paternity
Texas Family §160.301 and 160.301 allow for “acknowledgment of paternity” or an AOP. This means the mother of the child and the biological father can sign an acknowledgment that is sworn to and filed. If the biological mother is married to someone other than the biological father, her husband must file a denial of paternity before paternity can be established through the AOP.
If a couple is unmarried, it is especially important to establish paternity, so a father can have legal rights to his child. If a couple is unmarried and has a child, the father does not have rights to the child unless paternity is established. Both the mother and father must sign the document, and then the document must be filed with the Texas Vital Statistics Unit, which maintains records for Texas. If either the mother or father is unsure about the child’s paternity, neither party should sign the AOP.
An AOP can be rescinded for up to 60 days after it is filed or before a legal proceeding related to the child is initiated, whichever comes first.
Where can you get an Acknowledgment of Paternity (AOP)?
An AOP can be completed at a child support office or a local birth registrar. You do not need to open a child support case, even if you contacted a child support office and completed the form through that office.
If a father wants to sign an AOP but cannot be present at the child’s birth, the AOP can be signed before or after the child’s birth. However, both parents must go to the child support office or, as an alternative, the local birth registrar, to get the AOP processed. If the AOP is obtained before the child is born, the mother can bring it to the hospital and have it completed when the child is born. If the child is already born, an AOP can be completed by going to either the child support office or local birth registrar as well (provided it is completed in a timely manner).
What are the requirements for an AOP?
The AOP must:
- Be filed with the Vital Statistics Unit, and
- Be signed under penalty of perjury (lying on the AOP is a crime), and
- State whether or not the child already has a presumed father and if so, state his name, and
- State that the child does not already have an acknowledged father, and
- State that the child does not already have an adjudicated father, and
- State whether genetic testing has been conducted to establish paternity, and if it has been conducted, whether that test shows the man signing the AOP is the father
Court Ordered Paternity
In some cases, the mother and father disagree about who the biological father is. In this case, a family court may order the alleged father to take a cheek swab DNA test, which generally takes 4-6 weeks to obtain a result. After the results are obtained, the court can finalize paternity.
Getting married is one potential way to establish paternity. If a child is born to a married couple, the husband is assumed to be the father. Texas law also allows paternity to be established in some cases even if a marriage is invalid and the child is born within this relationship.
Paternity can even be established if the father marries the mother after the birth of the child and the father asserts paternity. But, in this type of situation, paternity is not just verbally declared, a few other steps are necessary to fulfill state requirements. At least one of the following must be established:
- the assertion must be filed with the vital statistics unit,
- the father is voluntarily named on the child’s birth certificate,
- the father promises to support the child as his own, or
during the first two years of the child’s life, the father lives with the child in the same house and tells others that the child is his own.
- the father promises to support the child as his own, or
- during the first two years of the child’s life, the father lives with the child in the same house and tells others that the child is his own.
The Texas Paternity Registry
There is a Paternity Registry through the Texas Vital Statistics Unit where a man can register and assume responsibility for a child if:
- he is the father of that child,
- or in order to speed up adoption of a child whose biological father refuses to acknowledge as his own or is unwilling to assume responsibility for that child
This is a voluntary register and is not required. In essence, the primary purpose of the Texas Paternity Registry is to either terminate the right of an unknown father by asserting one’s own paternity or to terminate the rights of a father who cannot be located after taking reasonable and comprehensive steps to try and locate the father.
How to get an updated birth certificate?
After paternity has been established through an AOP of Court Ordered Paternity, the birth certificate can be updated through the Texas Vital Statistics office.
Can you acknowledge paternity if the mother is married to someone else when the child is born?
It depends. If a mother is married to someone who is not the biological father of the child when the child is born, or if the baby is born within 300 days of the mother’s divorce from that man, the husband, or ex-husband, respectively, is still presumed to be the father. If the presumed father signs a Denial of Paternity, which is part of the AOP, then the biological father can assert his own rights. If the Denial portion of the AOP is not signed by the presumed father, then either the biological mother or biological father can open a case with the Office of the Attorney General. Alternatively, either biological parent may establish paternity through the court system.
What if the mother does not know who the father is?
The mother does not know who the father is, she may still contact the Child Support Division of the Attorney General’s Office. She will be asked to provide as much information as possible to the potential fathers.
Can genetic testing misidentify the father?
DNA testing can be up to 99.99 percent accurate. However, you might be sitting there and thinking, “I know I am not the dad!” You can still rebut the evidence of the genetic testing by producing another genetic testing that either excludes you as the father of the child or identifies another man as the possible father. If more than one man is identified as a possible father, the court has to order further genetic testing of each man.
If a man believes he is not the biological father, he must file a suit affecting the parent-child relationship asking a court to terminate the parent-child relationship. The court will order the father and child to submit to genetic testing and can order a termination of the relationship based on the results. This terminates his obligations going forward but he is still responsible for unpaid child support through that date.
Who pays for genetic testing to establish paternity?
That depends. If a parent initiates a child support case with the Attorney General’s Office, a test may be provided at no cost if a DNA test is found necessary by the Attorney General. If a father requests the test, even if a court initially pays for the test, usually the father must repay the cost of testing. If the parents cannot agree, the court may split the costs of the testing among the parties.
Can you take back an acknowledgment of paternity?
Potentially, yes. A declaration of paternity can be retracted if a person who signed an AOP files a rescission with the Vital Statistics Unit within 60 days of signing the AOP or before a lawsuit regarding the child is started, whichever event comes first.
How do you establish paternity if a surrogate was used?
If a married couple uses artificial insemination of the wife and a child is born, that child is considered the child of the husband and wife, not of the donor. Meaning, a man married to a woman who conceives a child using a donor, is still the presumed father of the child. Consent to use artificial insemination must be in writing and acknowledged. Donor parents are not named on a birth certificate unless there is an adjudication from a court with jurisdiction over the parties. If a donor seeks paternity rights, the donor may go through a valid adoption process or petition a District Court in Texas to determine parentage. If the court determines the donor is the legal parent, then the court would issue an order from the Vital Statistics Office and the hospital to use the donor on record, rather than the woman who gave birth to the child and her husband.
What if you think you are the father, but someone else signed the AOP as the father already?
You cannot challenge the AOP, but you can file a paternity suit and ask a court to identify you as the child’s legal father if you did not sign the AOP and the AOP is either void or it has been less than four years since the AOP was signed.
Do you have questions about establishing paternity in Texas or are you concerned about your legal status in regards to your child? If so, call our Fort Worth family and divorce lawyers today at 817-900-3220.